Source: Calcutta High Court

Why in News?

Recently, the Calcutta High Court in the matter of Sanjay Biswas v. The State has held that filling up gaps in the prosecution case by invoking Section 53A of the Criminal Procedure Code, 1973 (CrPC) would offend Article 21 of the Constitution of India, 1950 (COI).

What was the Background of Sanjay Biswas v. The State Case?

• In this case, the Court was dealing with a plea of criminal revision filed before the Calcutta High Court against an order by the special judge who allowed the prosecution's application for taking blood samples of the accused, victim, and minor baby of the victim for DNA profiling.
• The petitioner's counsel argued that the application for DNA testing was made only to fill up the gaps in the prosecution case.
• It was further stated that the application was made after the completion of the cross-examination, and that a public prosecutor under the provisions of the Protection of Children from Sexual Offences (POCSO) Act, 2012, did not have the authority to direct the police to act in an investigative capacity.
• The State argued that the invocation of Section 53A of CrPC cannot be faulted. It was submitted that the section could be invoked at any time for the purpose of adducing additional evidence.
• The High Court allowed the plea.

What were the Court’s Observations?

• A single bench of Justice Moushumi Bhattacharya observed that ignoring the gaps in the investigation in the form of collecting material contemplated under Section 53 A of CrPC gives rise to a presumption that the prosecution sought to fill up the gaps by invoking Section 53 A after the stage of the investigation was over.
• The Court stated that allowing new evidence to be taken after the investigation to fill the gaps in the prosecution case, and that such actions offended the Article 21 rights of the petitioner.
• It was further stated that Article 21 of the COI embodies a fair trial and presumes that every person will have the benefit of a trial which follows the procedure established by law. The principles of criminal jurisprudence cannot be diluted or bent to justify civil or social considerations which are collateral in nature.

What is Section 53 A of CrPC?

• This Section deals with the examination of person accused of rape by medical practitioner. It states that—

(1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed, by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose.

(2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely: —

(i) The name and address of the accused and of the person by whom he was brought.

(ii) The age of the accused.

(iii) Marks of injury, if any, on the person of the accused.

(iv) The description of material taken from the person of the accused for DNA profiling, and (v) other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived at.

(4) The exact time of commencement and completion of the examination shall also be noted in the report.

(5) The registered medical practitioner shall, without delay, forward the report to the investigating officer, who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section.

• Section 53 A is an enabling provision which gives a roadmap to the police after arrest.
• This Section provides for the registered medical practitioner forwarding the report to the Investigating Officer who shall thereafter forward it to the Magistrate.
• This Section does not vest the Court with any power for directing an examination under that section after the investigative phase which ends with framing of the charge.